Jan Hasselman,

Dec. 16, 2016

On December 4, 2016, the U.S. Army Corps of Engineers effectively denied an easement that would have allowed the Dakota Access pipeline to cross the Missouri River a few yards upstream of the Standing Rock Sioux Tribe’s reservation in North Dakota. The Corps invoked the Tribe’s treaty-protected rights to the pipeline route, and oft-overlooked principles of environmental justice, in declaring that it would open a review to examine alternative routes for the pipeline and full consideration of the risks and impacts of the project.It was a breathtaking achievement for the Tribe, its many supporters and allies and the water protectors peacefully holding a vigil on the frigid North Dakota plains. In Indian country, people will be taking about this day for decades.

Earthjustice has the great honor to serve as the Tribe’s lawyers in its litigation against the Corps and to help develop a political and media strategy against the pipeline. We provide the Tribe with legal, political and media expertise, and we work together to advance the Tribe’s vision of social and environmental justice, which historically has been trampled in the rush to develop the Tribe’s treaty lands and resources.

Of course, the historic events in Cannonball, North Dakota, are playing out against a dismal political backdrop. Donald Trump shocked even himself by eking out a win for the presidency despite advancing policies—like dirty air and water—that have no constituency. Trump’s position on the pipeline is clear: Trump supports completing the project, and the pipeline company’s CEO is an investor in Trump, having donated more than $100,000 to get the pro-fossil fuel businessman elected. Not surprisingly, many people question whether the Corps’ decision to examine alternatives to the river crossing at Cannonball through a full environmental review will survive Donald Trump.

Here are my thoughts on that question and other urgent issues surrounding the pipeline:

Will Dakota Access start drilling under the Missouri River without the easement?

I think this is unlikely because it’s a risky approach for a public corporation. Violating the Mineral Leasing Act would subject corporate executives not just to fines, but also to potential jail time. It would also put them in violation of their state licenses and, presumably, their financing agreements, which typically call for a borrowing party to comply with all applicable laws. Dakota Access could risk having their easement under the river denied permanently.

What happens to our lawsuit against the Army Corps in light of the December 4 announcement?

The announcement articulated a path to potentially resolving the Tribe’s concerns that the earlier permitting decision had not fully considered their interests and route alternatives. The Corps should not have acted without a full environmental review and a full understanding of the consequences for the Tribe. In good faith, the Tribe will work through the review process to ensure that the Corps considers all foreseeable impacts and risks—and all reasonable alternatives.If the process leads to an outcome that is satisfactory to the Tribe, our litigation serves no further purpose. But if the outcome of the process continues to harm the Tribe, the court can hold the Corps accountable. In the meantime, we have asked the court to stay our lawsuit.

What about the counter-claim filed by Dakota Access?

The December 4 announcement frustrates Dakota Access’ plans to finish the pipeline before January 2017, and the company has brought its own legal claim against the Corps. Remember that Dakota Access built a 1,200-mile, $4 billion pipeline to either bank of the Missouri River before it had any permit to cross the river and despite the Tribe’s insistence from the very beginning that the crossing at Cannonball was unacceptable. It ignored a formal request from three federal agencies to voluntarily stop construction within 20 miles of Lake Oahe and forced its way through an unprecedented civil protest using attack dogs, pepper spray, rubber bullets and water cannons in freezing temperatures. The company’s claim will take several months to resolve.Independent experts don’t think much of it and neither do we. Keep an eye on our FAQ page for updates on the case schedule.

Is it true that the Standing Rock Sioux didn’t register opposition to the pipeline until late in the process or take opportunities to engage with the Corps?

This is one of the unfortunate—and incorrect—narratives that emerged from the early stages of the Tribe’s litigation. Indeed, Energy Transfer Partners CEO Kelcy Warren proclaimed regret that the Tribe hadn’t spoken up sooner with its concerns, and that it was now too late to consider alternatives. But the Tribe has released a recording it made during a meeting of the Tribal Council with Dakota Access representatives in September of 2014—the very first opportunity the Tribe had to learn about the pipeline. Phyllis Young, a Standing Rock councilmember who closed the meeting, said the following:

What will the Trump administration do now?

While no one should underestimate the capacity of the new administration to undo the positive steps of the Obama administration, reversal of the December 4 decision is not a simple matter. The decision to conduct a full environmental review of route alternatives was not a political decision dictated by the White House, but rather a considered agency decision based on months of consultations and input from Tribes and experts on oil spill risk management, and analysis of legal risk presented by the Tribes’ lawsuit. Agencies can’t simply reverse themselves based on political considerations. An arbitrary order from the new White House to issue the easement—despite the Army Corps’ statement that further work is needed—would be illegal and would subject the decision to close judicial scrutiny. Together with the Tribe, we are prepared to defend the Corps’ decision and challenge any effort to reverse it.

In sum, opponents of the dangerous and ill-advised pipeline achieved something no one thought was possible, and together we should celebrate this historic moment and applaud the peaceful water protectors and decisionmakers like Jo-Ellen Darcy at the Department of Defense and Sally Jewell at the Department of the Interior. Everyone understands that the battle is far from over, but we are further along than anyone could have hoped when this fight started. The Standing Rock Sioux Tribe, its legal team and water protectors everywhere need your continued support.

Standing Rock Sioux Tribe Chairman Dave Archambault II speaks following a court hearing in Washington, D.C., on August 24. Hundreds of people had gathered outside the federal courthouse in support of the Tribe.